Law of evidence: Bharatiya Sakshya Adhiniyam

In short

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) is India's law of evidence — it tells courts what facts may be proved, by what material, and who must prove them. It came into force on 1 July 2024, repealing the Indian Evidence Act, 1872, and reorganised 167 old sections into 170 sections across 12 chapters and one Schedule (the electronic-record certificate). Its headline change is placing electronic and digital records on the same footing as documentary evidence, with a statutory certificate regime. It is examined in LLB evidence papers, the AIBE, judicial services preliminary and mains, and is tested in interviews for litigation chambers, LPO/e-discovery teams, compliance and fraud-investigation roles.

Explained

Scheme, structure and basic concepts

• BSA applies to all judicial proceedings in or before any court, including courts martial; it does not apply to affidavits or to arbitral proceedings (s. 1). Evidence law is procedural, so it applies to pending proceedings as well.
• Fact (s. 2(1)(f)): anything perceptible by the senses, plus any mental condition of which a person is conscious. Facts in issue: facts from which a right, liability or disability asserted in the suit necessarily follows. Relevant fact: one connected to another in the ways Chapter II describes.
• Evidence (s. 2(1)(e)) now expressly covers (i) oral statements including statements given electronically (permitting e-deposition/video-conference evidence), and (ii) documents including electronic records produced for inspection.
• Document (s. 2(1)(d)) includes electronic and digital records; the illustration list mentions electronic records on emails, server logs, computer files, locational evidence, and messages on devices.
• Proved / disproved / not proved (s. 2(1)(j), (c) and (i)) rest on the prudent man standard — the court believes it exists, or thinks it so probable that a prudent man ought to act on the supposition.
• May presume / shall presume / conclusive proof (all defined in s. 2(1)): discretionary presumption; mandatory but rebuttable presumption; and a presumption that no evidence is allowed to disprove.
• Two-stage inquiry in every evidence question: is it relevant? (Chapter II) then is it admissible and proved in the manner the Act requires? (Chapters IV-VI). Relevance is logical; admissibility is legal.

Relevancy of facts (Chapter II, ss. 3-50)

• Res gestae (s. 4): facts forming part of the same transaction are relevant, whether at the same place or time or not.
• Occasion, cause or effect; motive, preparation, conduct (ss. 5-6): including previous or subsequent conduct influencing or influenced by a fact in issue — explanatory statements accompanying conduct are relevant.
• Conspiracy (s. 8, old s. 10): anything said, done or written by one conspirator in reference to the common intention, after the time it was first entertained, is relevant against all.
• Facts otherwise irrelevant (s. 9): relevant if they are inconsistent with, or make highly probable/improbable, a fact in issue — the route for alibi.
• Damages, right/custom, state of mind, course of business (ss. 10-14): state of mind, body or bodily feeling is relevant where its existence is in issue; s. 14 makes the ordinary course of business relevant.
• Similar fact / system evidence (s. 13, old s. 15): whether an act was accidental or intentional — a series of similar occurrences is relevant (the "brides in the bath" reasoning).
• Admissions (ss. 15-21): statements suggesting an inference as to a fact in issue, by a party, agent or person in representative character. Admissions are relevant but not conclusive; they can be proved against the maker, not by him, subject to exceptions (s. 19). Without prejudice civil admissions are not provable (s. 21).
• Confessions (ss. 22-25): a confession caused by inducement, threat, coercion or promise from a person in authority is irrelevant (s. 22). Confession to a police officer is inadmissible (s. 23(1)), and a confession in police custody is inadmissible unless made in the immediate presence of a Magistrate (s. 23(2)). The discovery proviso (proviso to s. 23(2), old s. 27) saves so much of the information as distinctly relates to the fact thereby discovered. Note: the "police custody" wording was recast in the BSA; courts continue to read it with Art. 20(3) and s. 183 BNSS protections.
• Confession of a co-accused (s. 24): may be *taken into consideration* against others tried jointly for the same offence — corroborative only, never the sole basis of conviction.
• Statements by persons who cannot be called (s. 26, old s. 32): eight clauses — dying declaration (cause of death), statements in course of business, against pecuniary interest, as to public right, relationship, in wills/family pedigree, in documents relating to transactions under s. 11, and statements by several persons expressing feelings.
• Judgments (ss. 34-38): previous judgments relevant to bar a second suit; judgments in rem relevant; a judgment obtained by fraud or collusion, or by a court not competent, may be shown not to be final (s. 38).
• Opinion evidence (ss. 39-45): expert opinion on foreign law, science, art, handwriting, finger impressions and — expressly in the BSA — any other field, with s. 39(2) covering examiners of electronic evidence under s. 79A of the IT Act, 2000. Opinion of court/jury is not bound by it; expert opinion is advisory, never conclusive.
• Character (ss. 46-50): in criminal cases good character is relevant; previous bad character is not relevant unless the good character is given in evidence, or bad character is itself a fact in issue (e.g., repeat-offender sentencing). Character is generally irrelevant in civil cases except as affecting damages.

Proof, documents and electronic records (Chapters III-V, ss. 51-93)

• Facts not needing proof: judicially noticeable facts (s. 51, with the list in s. 52 covering laws, seals, official gazettes, territorial divisions, etc.) and admitted facts (s. 53).
• Oral evidence must be direct (s. 55, old s. 60) — the witness must have perceived the fact himself; hearsay is excluded, the exceptions being ss. 26, 4 (res gestae), admissions and the like.
• Documentary evidence: contents proved by primary or secondary evidence (s. 56). Primary evidence (s. 57) = the document itself, each part of a multi-part document, each counterpart against its signatory, and — new in the BSA — where an electronic record is stored in multiple files, each such file; also video recordings and records in proper custody.
• Secondary evidence (s. 58) now includes oral admissions, written admissions, and evidence of a person who has examined a voluminous document and is skilled in such examination — a widening over the 1872 Act.
• When secondary evidence is admissible (s. 60, old s. 65): original in the adversary's possession after notice, lost/destroyed, not easily movable, a public document, a certified copy permitted by law, or consists of numerous accounts.
• Electronic records (s. 61) — the pivotal section: nothing in the Act denies admissibility of an electronic or digital record on the ground that it is electronic; it shall have the same legal effect, validity and enforceability as paper records, subject to s. 63.
• Section 62: contents of electronic records may be proved in accordance with s. 63.
• Section 63 (old s. 65B) — admissibility of electronic records:
  1. A printout/copy produced by a computer or communication device is a document, admissible without further proof of the original, if the conditions are satisfied.
  2. Conditions: the record was produced during regular use of the device by a person having lawful control; information was regularly fed in the ordinary course; the device was operating properly (and if not, the defect did not affect accuracy); the information reproduces or is derived from the fed information.
  3. Records produced over a period by one or more devices in succession, or by combination/network, are treated as produced by a single device.
  4. A certificate in the form of the Schedule must accompany the record, signed by both the person in charge of the device and an expert — stating particulars of the device and a hash of the electronic/digital record. The BSA gives the certificate a statutory form (Schedule) and the hash requirement; this two-signature and hash requirement is the single most-tested change, reinforced by the Supreme Court's insistence (Anvar P.V., Arjun Panditrao Khotkar) that the certificate is mandatory for secondary electronic evidence.
• Public documents (ss. 74-77): records of sovereign/official acts and public records of private documents; proved by certified copies. Private documents are everything else.
• Presumptions as to documents (ss. 78-93): genuineness of certified copies, Gazettes, Acts, maps made by government; s. 81 presumes the genuineness of electronic records in the Official Gazette in electronic form; s. 85 presumes electronic agreements with electronic signatures; s. 88 presumes the sender of an electronic message forwarded by a server corresponds to the originator but not who composed it; s. 90 presumes genuineness of a thirty-year-old document (the 1872 Act's thirty-year rule is retained), while s. 93 presumes that a five-year-old electronic record was affixed with the electronic signature of the person it purports to come from.
• Exclusion of oral by documentary evidence (ss. 94-103): terms reduced to a document must be proved by the document; no oral evidence to contradict, vary, add to or subtract from the terms, with exceptions (fraud, want of consideration, separate oral agreement on a silent point, condition precedent, usage). Patent ambiguity cannot be cured by extrinsic evidence; latent ambiguity can.

Burden of proof, presumptions and estoppel (Chapters VII-VIII, ss. 104-123)

• General rule (s. 104): whoever desires a court to give judgment on a legal right or liability must prove the facts he asserts — the legal burden never shifts; the evidential burden/onus shifts as evidence comes in. s. 106: the burden of proving a particular fact lies on the person who wishes the court to believe in its existence.
• s. 105: burden lies on the person who would fail if no evidence at all were given.
• s. 108 (old s. 105): when an accused claims a General Exception of the BNS or a proviso, the burden of proving those circumstances is on him — but on a preponderance of probability, not beyond reasonable doubt.
• s. 109: burden of proving a fact especially within a person's knowledge lies on him.
• ss. 110-111 (old ss. 107-108): burden of proving the death of a person shown to have been alive within thirty years lies on the one who asserts it; a person not heard of for seven years by those who would naturally have heard is presumed dead, and the burden of proving him alive shifts to the one who affirms it.
• ss. 117-118 (old ss. 113A, 113B): presumptions in abetment of suicide by a married woman within 7 years and dowry death within 7 years — the latter is a shall presume.
• s. 116 (old s. 112): a child born during a valid marriage, or within 280 days of its dissolution with the mother unmarried, is conclusive proof of legitimacy unless non-access is shown. Courts read DNA evidence into this only on strong prima facie non-access (Goutam Kundu line of cases).
• s. 119 (old s. 114): the court may presume the existence of any fact likely to have happened, having regard to the common course of natural events and human conduct — the home of the adverse-inference and recent possession of stolen property illustrations.
• s. 120 (old s. 114A): in prosecutions for the aggravated forms of rape under s. 64(2) BNS (by a police officer, public servant, member of the armed forces, jail/hospital staff, relative or person in a position of trust, and the like) where sexual intercourse is proved and the woman states she did not consent, the court shall presume absence of consent.
• ss. 121-123 (old ss. 115-117): estoppel — one who by declaration, act or omission intentionally causes another to believe a thing and to act on it cannot deny its truth; plus estoppel of tenant and of acceptor of a bill.

Witnesses, examination and corroboration (Chapters IX-X, ss. 124-168)

• Competency (s. 124): all persons are competent unless prevented by tender years, extreme old age, disease or any other cause from understanding and answering rationally. A child witness may testify after the court satisfies itself of understanding (voir dire); no minimum age.
• Privileges: Judges and Magistrates (s. 127); marital communications (s. 128) — neither spouse compellable to disclose, privilege survives the marriage; State affairs (s. 129); official communications (s. 130); advocate-client (s. 132-134) — survives after employment ends, exceptions for communications in furtherance of an illegal purpose and facts showing a crime/fraud since employment; privilege is the client's, and is not waived merely because the client gives evidence; it is waived only if the client calls the lawyer as a witness and questions him on the privileged matter (s. 133). No privilege for an accountant or doctor as such.
• Accomplice (s. 138, old s. 133): an accomplice is a competent witness and a conviction is not illegal merely because it rests on his uncorroborated testimony — read with s. 119 illustration (b), the rule of prudence demands corroboration.
• Examination (ss. 140-168): order is examination-in-chief → cross-examination → re-examination (s. 142). Leading questions are not allowed in chief or re-examination except with leave (s. 146) but are permitted in cross.
• Cross-examination of a witness as to credit (ss. 148-156): the witness is bound to answer questions tending to criminate (s. 137, old s. 132) but the answer cannot be used to arrest/prosecute him except for giving false evidence; indecent and scandalous questions and questions intended to insult may be forbidden (ss. 154-155).
• Impeaching credit (s. 158, old s. 155): by evidence of unworthiness, bribery, or former statements inconsistent with the present testimony.
• Hostile witness (s. 157, old s. 154): the court may permit the party who called a witness to cross-examine him; such testimony is not wholly effaced — the court may rely on the credible part.
• Previous statements (ss. 159-161): contradiction by a previous writing requires the attention of the witness to be drawn to the relevant parts (s. 148); a former statement may corroborate (s. 160); police statements under s. 180 BNSS may be used only to contradict, under s. 181 BNSS.
• Refreshing memory (ss. 162-164) from writings made at the time or soon after; production of documents (s. 165); court's power to put questions (s. 168, old s. 165) — wide power to ask any question at any time to discover or obtain proof of relevant facts.
• No particular number of witnesses required (s. 139, old s. 134) — evidence is weighed, not counted.

What changed from the Indian Evidence Act, 1872

• Renumbering and consolidation: 167 → 170 sections; 24 provisions modified, 2 added, 6 omitted (official statement of changes); a Schedule added containing the certificate for electronic evidence.
• Electronic records elevated to primary evidence status in defined cases (multiple files, s. 57); definition of document and evidence expanded; s. 63 certificate made statutory in form, with hash value and dual signature.
• Oral evidence may be given electronically — enabling video-conferencing depositions, aligned with s. 530 BNSS (trials/proceedings in electronic mode).
• Joint trials (s. 24 Explanation): a trial of multiple persons where one absconds or an arrest warrant is pending is deemed a joint trial — widening the use of co-accused confessions.
• Secondary evidence widened to include oral/written admissions and the summary of a skilled examiner of voluminous documents.
• Archaic terms (references to barristers, pleaders, vakils, the Queen, Commonwealth) replaced; gender-neutral drafting.
• Not changed: core architecture of relevancy, burden of proof, confession bar to police officers, s. 27-type discovery proviso, estoppel, privileges — so pre-2024 case law on these remains good law, cited to the new numbering.
• Companion statutes: Bharatiya Nyaya Sanhita, 2023 (substantive offences) and Bharatiya Nagarik Suraksha Sanhita, 2023 (procedure); the IT Act, 2000 (ss. 2(1)(t), 3A, 79A) supplies definitions of electronic record, electronic signature and notified examiners of electronic evidence.

Key points

• BSA commencement - 1 July 2024; repealed the Indian Evidence Act, 1872; 170 sections, 12 chapters, one Schedule.
• Relevance vs admissibility - relevance is logical connection (Ch. II); admissibility is the legal permission to receive it (Ch. IV-VI).
• Proved standard - a prudent man ought to act on the supposition that the fact exists; "not proved" is neither proved nor disproved.
• s. 4 res gestae - facts in the same transaction are relevant even if at different times and places.
• s. 8 conspiracy - acts/statements of one conspirator after the common intention began bind all co-conspirators.
• s. 22 - confession induced by threat, promise or coercion by a person in authority is irrelevant.
• s. 23 - confession to a police officer is inadmissible; in custody, only before a Magistrate (s. 23(2)); the proviso to s. 23(2) saves facts distinctly discovered.
• s. 24 - co-accused confession is only corroborative; cannot alone sustain a conviction; Explanation deems absconder cases joint trials.
• s. 26(a) dying declaration - admissible, needs no oath or cross-examination, can be the sole basis of conviction if found truthful and voluntary.
• s. 55 - oral evidence must be direct; hearsay is excluded save by statutory exception.
• s. 57/58/60 - primary evidence is the document itself (each file of a multi-file electronic record); secondary evidence needs a s. 60 ground.
• s. 61 - electronic/digital records have the same legal effect as paper records.
• s. 63 + Schedule - the certificate, signed by the person in charge and an expert and carrying the hash, is mandatory for electronic records produced as copies/printouts.
• s. 104-106 - the legal burden stays with the asserter; only the evidential onus shifts.
• s. 108 - the accused must prove a General Exception, on preponderance of probability only.
• s. 116 - birth during valid marriage is conclusive proof of legitimacy unless non-access is proved.
• s. 119 - the court may presume facts from the common course of natural events, human conduct and public business (adverse inference, recent possession).
• s. 157/158 - hostile-witness cross-examination by the calling party; credit impeached by prior inconsistent statements; s. 139 - no minimum number of witnesses.

Examples

• Case 1 - CCTV footage on a pen drive. A bank robbery is captured on CCTV; the investigating officer copies the footage to a pen drive and files a printout of stills. Step 1: the footage is an electronic record (s. 2(1)(d)). Step 2: the original hard disk of the DVR is primary evidence (s. 57); the pen drive copy is a computer output under s. 63. Step 3: the prosecution must satisfy the four s. 63(2) conditions and file the Schedule certificate signed by the DVR custodian and an expert, stating the device particulars and the hash of the file. Step 4: without the certificate the footage is inadmissible as secondary electronic evidence; with it, no further proof of the original is needed. Result: admissible only with the s. 63(4) certificate.
• Case 2 - the discovery statement. An accused in police custody says, "I stabbed him with a knife and buried it behind my shed," and the knife is recovered there. Step 1: the whole confession is barred by s. 23(1)-(2). Step 2: the proviso to s. 23(2) saves only so much as distinctly relates to the fact discovered — "I buried the knife behind my shed". Step 3: "I stabbed him" is the inculpatory part and is excluded. Step 4: the recovery plus the admissible fragment is circumstantial evidence requiring corroboration. Result: only the discovery portion is admissible.
• Case 3 - dying declaration. A burn victim tells the duty doctor her husband poured kerosene on her; she dies two days later. Step 1: s. 26(a) makes a statement as to the cause of death relevant. Step 2: no oath or cross-examination is required; it is tested for the victim's fitness to make it and voluntariness, best certified by the doctor. Step 3: the dowry-death presumption under s. 118 applies if death was within 7 years of marriage in connection with dowry demand. Step 4: a truthful, voluntary declaration can sustain a conviction alone; if doubt exists on fitness, corroboration is required. Result: admissible and potentially sufficient by itself.
• Case 4 - burden of proof in a private-defence plea. The accused admits the killing but pleads self-defence. Step 1: the prosecution must prove the homicide beyond reasonable doubt (s. 104). Step 2: s. 108 shifts the burden of proving the General Exception (private defence under the BNS) to the accused. Step 3: his standard is only preponderance of probability; he need not prove it beyond reasonable doubt. Step 4: even if he fails, material on record creating a reasonable doubt about the prosecution case still entitles him to acquittal. Result: split burden, different standards.
• Case 5 - hostile eyewitness. The prosecution's eyewitness resiles in chief and says he saw nothing. Step 1: the prosecutor seeks leave under s. 157 to cross-examine him. Step 2: his earlier s. 180 BNSS police statement may be used only to contradict, after drawing his attention to it (s. 161). Step 3: his evidence is not automatically washed out — the court may accept the part corroborated by other evidence. Step 4: a prior statement to a Magistrate under s. 183 BNSS carries more weight and may corroborate under s. 160. Result: partially usable, weighed with care.

Where it is used

• Litigation and criminal trials: trial-court advocates and public prosecutors tender exhibits, draft s. 63 certificates, and frame cross-examination under ss. 140-161 — core daily work in district courts, High Courts and the Supreme Court.
• Police and investigation agencies: CBI, ED, NIA, state crime branches and cyber cells seize devices with hash verification so that the s. 63 certificate can be issued; forensic science laboratories and CERT-In empanelled examiners notified under s. 79A of the IT Act give expert opinion.
• Corporate compliance, forensic audit and e-discovery: Big Four forensic teams, banks' fraud-risk units and LPOs (Pangea3, Integreon, UnitedLex) preserve email and server logs, maintain chain of custody and prepare evidence packs for SFIO, SEBI and NCLT proceedings.
• Tribunals and quasi-judicial bodies: NCLT, DRT, consumer commissions, income-tax and GST appellate forums are not strictly bound by the BSA but follow its principles of relevancy and burden of proof.
• Judicial services and law-officer recruitment: the BSA is a full paper in state judicial services and a scoring module in AIBE; drafting and pleading rounds test exhibit-marking and objections.
• In-house legal and insurance claims: documentary proof, estoppel, privileged advice and admissions determine how contracts, claim repudiations and employment disputes are litigated.

Interview questions

• Q: What is the difference between relevancy and admissibility? A: Relevancy is the logical connection between facts set out in Chapter II; admissibility is the legal permission to receive relevant evidence after the Act's conditions of proof are met. All admissible evidence is relevant, but not all relevant evidence is admissible.
• Q: Is a confession to a police officer ever usable? A: No, s. 23(1) bars it entirely; only the proviso to s. 23(2) saves so much of the information as distinctly relates to a fact thereby discovered, and even that is not treated as a confession.
• Q: Can a conviction rest solely on a dying declaration? A: Yes. If the court finds the declaration voluntary, truthful and made when the declarant was fit, no corroboration is required; doubt about fitness or tutoring makes corroboration necessary.
• Q: What exactly must the s. 63 certificate contain? A: The Schedule form particulars of the device, the manner of production, and the hash value of the electronic record, signed by both the person in charge of the device and an expert.
• Q: When is an electronic record primary rather than secondary evidence? A: Under s. 57, where the record is created or stored simultaneously in multiple files, each such file is primary evidence; a printout or copy produced for the court is governed by s. 63.
• Q: Does the burden of proof ever shift? A: The legal burden on the party asserting a right never shifts; the evidential onus shifts as evidence comes in, and s. 108 places the burden of a General Exception on the accused on preponderance of probability.
• Q: Is the testimony of a hostile witness entirely discarded? A: No. The court may rely on whatever part is credible and corroborated; hostility affects weight, not admissibility.
• Q: How is a co-accused's confession treated? A: Under s. 24 it may only be *taken into consideration* against a co-accused tried jointly for the same offence; it is weak corroborative material and cannot be the sole basis of conviction.
• Q: Does advocate-client privilege end when the brief ends? A: No, it continues after the employment ceases, but it does not protect communications made in furtherance of an illegal purpose or facts showing a crime or fraud committed since the engagement began.
• Q: Is there a privilege for doctors or accountants? A: No. The BSA recognises privilege for judges, spouses, State affairs, official communications and legal advisers, not for medical or accounting professionals.
• Q: What is the evidentiary value of a police statement recorded under the BNSS? A: It is not substantive evidence; it may be used only to contradict the witness in court, after his attention is drawn to the relevant part.
• Q: Does the BSA wipe out Indian Evidence Act case law? A: Largely no. Where provisions are reproduced with only renumbering, earlier precedent continues to apply; new reasoning is needed mainly on electronic records and the Schedule certificate.

Common mistakes

• Citing 1872 Act section numbers (s. 32, s. 65B, s. 27, s. 114) in an answer about the BSA — give the BSA number and mention the old one in brackets only.
• Treating a confession as conclusive: confessions and admissions are relevant but rebuttable, and the fragment saved by the s. 23(2) proviso is not a confession at all.
• Forgetting the s. 63 certificate, or assuming a single signature suffices — the Schedule requires both the device custodian and an expert, plus the hash.
• Confusing the standard of proof for the accused under s. 108 (preponderance) with the prosecution's (beyond reasonable doubt).
• Saying "relevant therefore admissible" — relevancy is only the first gate; the mode-of-proof rules still apply.
• Treating a hostile witness's whole deposition as erased, or treating a police statement as substantive evidence.
• Using DNA evidence to defeat s. 116 without first showing a strong prima facie case of non-access.

Related topics

Criminal law: Bharatiya Nyaya Sanhita · Criminal procedure: BNSS · Information Technology Act, 2000 and cyber forensics · Constitutional safeguards: Articles 20(3) and 21 · Civil Procedure Code and pleadings · Professional ethics and advocacy skills